Railroad v. Burton , 63 S.C. 348 ( 1902 )

April 5, 1902. The opinion of the Court was delivered by The parties who are defendants in the thirty cases above entitled, claiming to own lots on Lincoln and Gadsden streets, in the city of Columbia, S.C. began proceedings under the condemnation statutes against the South Bound Railroad Company for compensation for the taking, alteration and impairment of their property and easement in said streets by reason of the construction of said company's railroad in said streets. Thereafter, these actions were begun by the South Bound Railway Company to enjoin the several defendants above named from further proceeding under the statute. To a rule to show cause why they should not be enjoined, the defendants made return, which after hearing was adjudged sufficient, and thereupon the Circuit Court, Judge Gage presiding, refused the injunction and dissolved the temporary restraining order previously issued. The Circuit Court took the view that there were very few disputed questions of fact involved and did not consider such disputed matter, but for the purposes of the cases assumed all the facts stated in the complaints to be true, and made his ruling as if the matter were before him on demurrers to the complaints for not stating facts sufficient to entitle the plaintiff to the relief sought; and, citing the cases of Ross v. Railway,33 S.C. 482, and Wilkins v. Gaffney, 54 S.C. 199, held that the land owners on the streets of Columbia have a peculiar right in the streets where the streets abut their lots; that such rights are incident and appurtenant to their land, are property for the taking of which the railroad company must make compensation to the owners of the abutting lots, and that the proper mode of obtaining that compensation is through the proceedings, which they had commenced under the statute. For a more detailed statement of the facts reference may be had to the complaint and the return to the rule appearing in the report of this case.

Appellant's first exception to the order of the Circuit Court is in this language: "1. Because it appearing by the complaint that the plaintiff has never admitted defendant's ownership of the lot of land described in the complaint, or that defendant owned any easement of access to said lot over and across Lincoln street, and the defendant's ownership of said lot and easement of access being denied in the complaint, his Honor should have held that the defendant should be enjoined from prosecuting the proceedings complained of in the complaint until her title to the lot in question and ownership of the easement of access has been adjudged by the Court." This exception we think is well taken. The portions of the complaint and return bearing upon this matter are as follows: Complaint: "12. That this plaintiff denies knowledge or information sufficient to form a belief as to the ownership by the defendant of the lot of land above described, but does deny that said defendant had any easement or property in the said Lincoln street other than her right of access to said lot if she is the owner thereof, and this plaintiff further alleges that it has not in any manner taken or impaired the easement of access to said lot." Return to the rule, paragraph 4: "As to the allegations of paragraph 12 of the complaint herein, this defendant denies the same, and upon information and belief alleges that the tract of land embracing the streets and lots within the original limits of the city of Columbia having passed to and become vested in the commissioners of the town of Columbia, in fee for the use of the State of South Carolina, thereafter said tract of land was subdivided into streets and lots, which said lots were sold and conveyed from time to time by said commissioners or their lawful successors, subject and with reference to said subdivision and as abutting and bounding upon said streets; that this defendant owns the fee simple title to the lots referred to in said paragraph, having derived said title through, under and by virtue of certain deeds of conveyance to her and to her privies in estate running back, as shown by the records for said Richland County, to the time of the war, and prior thereto, as she has been informed and believes, to a conveyance from the commissioner or commissioners of the town of Columbia, and that through, under and by virtue of said deeds of conveyance, this defendant owns property, namely, an interest in real estate in and to said Lincoln street, which the plaintiff herein has taken without this defendant's consent, and for which said plaintiff has refused and still refuses to make compensation, notwithstanding she duly gave notice of her claim thereto." It appears also that the complaint in the fifth paragraph alleges that the State of South Carolina retains the fee in the streets of Columbia, which is denied in the first paragraph of the return, and in the sixth paragraph of the return the defendant claims to own not only an easement of access and of light and air in said streets, but the fee in said streets to the middle thereof. The return also denies the allegations in the thirteenth and fourteenth paragraphs thereof. The foregoing is sufficient to show that the right of the defendants to compensation is disputed by the railroad company. In such a case it is proper to enjoin the proceedings under the condemnation statutes, as they do not prescribe any method by which the disputed rights of the land owner or claimant to compensation can be determined. RailwayCo. v. Ridlehuber, 38 S.C. 313. The order dissolving the temporary injunction herein and refusing to continue the same is appealable, because such injunction is essential to the assertion of the legal right claimed by plaintiff. Strom v. Am. c. Mort. Co., 42 S.C. 101; Seabrook v. Mostowitz,51 S.C. 435.

In advance of any decision thereon by the Circuit Court after hearing on the merits, we deem it premature to determine whether the fee in the streets of the city of Columbia is in the State, the city council or the abutting lot owners; whether a steam commercial railroad as distinguished from a street railway proper at street grade, may be constructed in the streets of a city under the authority of an act of the legislature and an ordinance of the city council, without compensation to the abutting lot owners who own either the fee to the middle of the street or an easement of access and of light and air; whether, if the abutting lot owners own merely an easement in said streets, the construction of such railroad is a "taking" of property, within the meaning of our Constitution; whether if the construction of such railroad is not a "taking" of such easement if at street grade and its use of that part of the street is not exclusive, is such construction a "taking" of such easement in part, when the railway is below grade, or in a cut, or above grade, on a trestle or embankment which exclusively appropriates a portion of the street; whether ample means of ingress and egress are still left the claimants on said streets, and if so whether, nevertheless, if a part of the street is exclusively appropriated by the construction and operation of the railroad, are abutting lot owners entitled to compensation for loss to their property by reason of such exclusive appropriation. We decide only that, inasmuch as it appears that the right to compensation is disputed, it was error to refuse to continue the temporary injunction of the proceedings under the condemnation statute.

The judgment of the Circuit Court is reversed, and the case is remanded for such further proceedings as may be proper.